Report of Proceedings - International Criminal Tribunal for Rwanda

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psychologist, and a nurse. The ICTR tried to give equal assistance to witnesses, and the money spent on witnesses was far higher than that spent on the accused. Mr. Bernard Muna raised a concern about the policy of remission of sentence, which seemed to him to be almost automatic at the ICTY. He suggested there should be an additional element, concerning the conduct and recognition by the prisoner - repentance - about the wrong done to society. Some prisoners could go back to their particular community as heroes, having spent time in prison in defence of their group. It would not help reconciliation to give one-third remission of sentence, and then have the person go back as a hero. The prisoner had to accept the reality of what he did. There was a need to assess the attitude of the prisoner, so that he did not aggravate the situation upon his return to society. Dr. John Hocking agreed with Muna’s point, explaining that there was not an automatic granting of early release, although this might be so in practice. The procedure was complex. Behaviour in detention did count. However, the issue of repentance was not taken into consideration, as this was not the domain of the ICTY. Hon. Judge Navanethem Pillay asked if States would accept those who were acquitted. She also asked if the place of service of sentence figured on plea-bargaining. Dr. John Hockings answered her questions, noting that both the Trial Chambers and the Appeals Chamber have acquitted some persons at the ICTY. Although it was unclear if there are problems at a State level, it is very possible that there would be problems in the local community. For example, in the Blaskic case, Blaskic’s sentence of 40 years was reduced to nine years on appeal, and he got early release almost immediately. He went back to visit the areas where the crimes had been committed, saying he wished to apologise. He was received with very “mixed” feelings. With regard to Pillay’s second question and the ICTY, pleabargaining was an issue between only the prosecution and the accused. The Registry, which was not involved, was solely responsible for transferring prisoners to States. Since the Registry had no contact with the Prosecution on the place of service of sentence, it was not part of plea discussion. Mr. Roland Amoussouga added that the issue of States accepting acquitted persons is the key challenge faced by the ICTR that is not addressed in the Statute or by the international community. Acquitted persons were usually refugees, with no documentation. Convicted persons who have served their sentences became quasi stateless. Most of them do not want to go back to Rwanda. 24
VII. Challenges of the Administration of International Criminal Tribunals Moderator Mr. David Crane, Prosecutor, SCSL Presenters Hon. Judge Erik Møse, President, ICTR; Mr. Adama Dieng, Registrar, ICTR; Mr. Martin Ngoga, Deputy Prosecutor General, Rwandan Government; and Mr. Luis Moreno Ocampo, Prosecutor, ICC PRESENTATIONS “The Independence of the Judicial Organ of the Tribunal,” presented by Hon. Judge Erik Møse Judge Møse began his presentation by noting that some might find “independence of the judicial organ” to be an unnecessary topic for discussion. Is not the independence of the judiciary a self-evident principle? It is stated in all human rights conventions and almost all constitutions. Judge Møse presented three explanations for why this topic warrants discussion. The first is that even if the idea is old, its implementation has to be steadfastly continued. There is the continuous task of making sure that independence is safeguarded in the daily activities of any court. The second reason is that the challenges for an international court may well be different from the challenges of a national court. Thirdly, there may be differences between international tribunals—the challenges to the independence of one international criminal tribunal may well differ from the situation in which another Tribunal is operating. Before examining independence from the perspective of the ICTR, Judge Møse explained that independence of the judicial organ could be discerned from the tripartite structure of the tribunal, which includes one dependent organ and two independent. The registry, based in Arusha, is in the hierarchy under the UN Secretariat and therefore dependent. The bench and the prosecutor are independent organs, created by the Security Council to adhere to the principles of judicial independence and prosecutorial independence respectively. The tripartite structure is a necessary consequence of the form of the decision to set up the tribunal, namely, the UN Security Council Resolution under Chapter 7 of the UN Char ter. In the ICTR Statute, there is no reference to the independence of the tribunal. Therefore, the right to be tried by an independent tribunal is not amongst the rights explicitly mentioned in, for example, Articles 19 or 20. This is in spite of the fact that Article 20 of the ICTR Statute is so closely modelled on the covenant, Article 14, which states "Everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law". He noted that it has always been the intention that the judicial branch be independent. This follows from UN human rights conventions, Article 14 of the covenant, general comment 13 of the human rights committee, and all the basic principles on the independence of the judiciary. In Prosecutor v. Kanyabashi, the Appeals Chamber found that the accused has the right to be tried by an independent and impartial tribunal. The Appeals Chamber distinguished between 25
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Report of Proceedings - International Criminal Tribunal for Rwanda

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